Pavitra Devi vs. State

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CWP No. 1560 of 2012. Decided on: 3.8.2017.

Ajay Mohan Goel, J*(Oral).*

By way of this writ petition, the petitioner has mainly prayed

for the following reliefs:-

"(i) That writ in the nature of certiorari may kindly be issued and the impugned rejection vide order dated 4.3.2006 (Annexure P-5), may kindly be quashed and set aside and further the respondents may be directed to implement the selection made in the interview on 4.3.2006 and give appointment to the petitioner as Primary Assistant Teacher in Govt. Primary School Bohar, Tehsil Chopal, Distt. Shimla, HP;

(ii)That the respondents may kindly be directed to give all the benefits to the petitioner including appointment from the date of selection i.e. 4.3.2006 with all consequential benefits including the seniority and salary etc;

(iii) That in the alternative writ in the nature of mandamus may kindly be issued directing respondent No.1 to 3 to conduct the interview afresh after inviting the applications from the eligible candidates as respondent No.1 to 3 has not complied the directions issued by this Hon'ble Court in its letter and spirit."

¹ Whether reporters of the local papers may be allowed to see the judgment?

2. The case of the petitioner is that she belongs to Jansari Caste and hails from village Bhagwat, PO Devdhar, Tehsil Tiuni, District Dehradun, Uttranchal (now known as Uttrakhand) and that Jansari caste is recognized by the Government of India as scheduled tribe. She married one Hari Ram a permanent resident of village Sunarli, PO Bohar, Tehsil Chopal Distt. Shimla and after her marriage she was living with her husband in the village of her husband. On 10.2.2006 process was initiated by the Government of Himachal Pradesh for recruitment of Primary Assistant Teacher in Government Primary School, Bohar in Tehsil Chopal, Disttt. Shimla. The post so advertised was for scheduled tribe. As per the petitioner, she was eligible for the said post accordingly she submitted her candidature for the same and was interviewed for the same on 4.3.2006. Her grievance is that despite the fact she was the only eligible candidate who had applied for the said post, her candidature was rejected on the ground that she belongs to scheduled tribe of another State and thus was not eligible to be considered for appointment against the scheduled tribe post reserved for the State of Himachal Pradesh.

3. Feeling aggrieved, she filed Original Application i.e. OA No. 2345 of 2006. During the pendency of this Original Application, respondent No.4 also filed an Original Application before Learned Tribunal which was registered as OA No. 3540 of 2006 in which petitioner was arrayed as respondent N0.4. On the abolition of the learned Tribunal both these applications were transferred to this Court which were disposed of by this Court, vide judgment dated 22.6.2010 (Annexure P-7) by the following order:-

"With the consent of parties, the writ petitions are disposes of with a direction to the respondents to re-do the entire selection process by issuing fresh advertisement for filling up the post of Primary Assistant Teacher in Government Primary School, Bour, Tehsil Chopal, District Shimla. The selection process shall be completed by the respondent-State in accordance with law, i.e., after duly advertising the post and by considering the candidature of the petitioners by a duly constituted committee. The selection committee shall make the recommendations after adjudging the suitability of the candidates on merits. The petitioners are permitted to participate in the selection process. The selection process is directed to be completed within a period of ten weeks from today. The petitions stand disposed of, so also the pending applications, if any."

4. Thereafter as per the petitioner, Block Primary Education Officer issued another advertisement on 29.12.2010 inviting applications from the eligible candidates for recruitment of Primary Assistant Teacher which was reserved for scheduled tribe category. Interviews for the said post stood fixed for 12.1.2011. Both petitioner as well as respondent No.4 appeared in the said interview, however, the result of the interview was not declared. This led to the filing of the petition.

5. In reply to the petition, respondent-State has submitted that though petitioner as well as respondent No.4 were called for interview for the post of Primary Assistant Teacher in Govt. Primary School, Bohar which post was reserved for scheduled tribe, however, a perusal of the scheduled tribe certificate so produced by petitioner demonstrated that she belongs to scheduled tribe in the State of Uttrakhand. Thus as per respondent-State, as petitioner belongs to the State of Uttrakhand, she is not entitled to claim the benefit of scheduled tribe in the state of Himachal Pradesh and as such she is not eligible to be appointed as Primary Assistant Teacher in Govt. Primary School Bohar against a post reserved for scheduled tribe candidate.

6. I have heard learned counsel for the petitioner as well as learned Deputy Advocate General and have also carefully perused the records of the case.

7. The moot issue involved in this petition is as to whether a candidate who belongs to scheduled tribe category of a particular State can be considered for appointment in another State against a post reserved for scheduled tribe category or not. It is not in dispute that though the petitioner belongs to a scheduled tribe category, however, this category to which she belongs is recognized as a scheduled tribe category in the State of Uttrakhand and not in the State of Himachal Pradesh. This issue is no more res integra as it has been settled in more than one judgment by the Hon'ble Supreme Court that a person who belongs to scheduled caste or scheduled tribe category in a particular State cannot claim benefit of belonging to SC/ST category in another State. In other words a scheduled tribe of Uttrakhand is entitled to be considered for appointment against a post reserved for scheduled tribe category in State of Uttrakhand but such candidate is not entitled to be considered for appointment in the State of Himachal Pradesh against the post which is reserved for scheduled tribe category in the State of Himachal Pradesh. Only such like parsons are eligible to be considered for appointment against a post reserved for scheduled tribe who belong to scheduled tribe in the State of Himachal Pradesh.

8. Specification of a caste or a tribe as a scheduled caste or scheduled tribe, is provided in article 341 and 342 of the constitution of India. A five Judge Bench of the Hon'ble Supreme Court in Action Committee on Issue of Caste Certificate to Scheduled Castes and Scheduled Tribes in the State of Maharashtra and another Vs. Union of India and another, (1994) 5 Supreme Court Cases 244 has held:

"3. On a plain reading of clause (1) of Articles 341 and 342 it is manifest that the power of the President is limited to specifying the castes or tribes which shall, for the purposes of the Constitution, be deemed to be Scheduled Castes or Scheduled Tribes in relation to a State or a Union Territory, as the case may be. Once a notification is issued under clause (1) of Articles 341 and 342 of the Constitution, Parliament can by law include in or exclude from the list of Scheduled Castes or Scheduled Tribes, specified in the notification, any caste or tribe but save for that limited purpose the notification issued under clause (1), shall not be varied by any subsequent notification. What is important to notice is that the castes or tribes have to be specified in relation to a given State or Union Territory. That means a given caste or tribe can be a Scheduled Caste or a Scheduled Tribe in relation to the State or Union Territory for which it is specified. These are the relevant provisions with which we shall be concerned while dealing with the grievance made in this petition. ….. ….

16. We may add that considerations for specifying a particular caste or tribe or class for inclusion in the list of Scheduled Castes/Schedule Tribes or backward classes in a given State would depend on the nature and extent of disadvantages and social hardships suffered by that caste, tribe or class in that State which may be totally non est in another State to which persons belonging thereto may migrate. Coincidentally it may be that a caste or tribe bearing the same nomenclature is specified in two States but the considerations on the basis of which they have been specified may be totally different. So also the degree of disadvantages of various elements which constitute the input for specification may also be totally different. Therefore, merely because a given caste is specified in State A as a Scheduled Caste does not necessarily mean that if there be another caste bearing the same nomenclature in another State the person belonging to the former would be entitled to the fights, privileges and benefits admissible to a member of the Scheduled Caste of the latter State "for the purposes of this Constitution". This is an aspect which has to be kept in mind and which was very much in the minds of the Constitution-makers as is evident from the choice of language of Articles 341 and 342 of the Constitution. That is why in answer to a question by Mr Jaipal Singh, Dr Ambedkar answered as under:

"He asked me another question and it was this. Supposing a member of a Scheduled Tribe living in a tribal area migrates to another part of the territory of India, which is outside both the scheduled area and the tribal area, will he be able to claim from the local Government, within whose jurisdiction he may be residing the same privileges which he would be entitled to when he is residing within the scheduled area or within the tribal area? It is a difficult question for me to answer. If that matter is agitated in quarters where a decision on a matter like this would lie, we would certainly be able to give some answer to the question in the form of some clause in this Constitution. But so far as the present Constitution stands, a member of a Scheduled Tribe going outside the scheduled area or tribal area would certainly not be entitled to carry with him the privileges that he is entitled to when he is residing in a scheduled area or a tribal area. So far as I can see, it will be practicably impossible to enforce the provisions that apply to tribal areas or scheduled areas, in areas other than those which are covered by them…."

Relying on this statement the Constitution Bench ruled that the petitioner was not entitled to admission to the medical college on the basis that he belonged to a Scheduled Tribe in the State of his origin."

9. Thus, it is evident from the above judgment that a person belonging to Scheduled Caste or Scheduled Tribe of one State cannot get the benefit of Scheduled Caste or Scheduled Tribe in another State.

In view of above discussion as there is no merit in this petition, accordingly the same is dismissed with no order as to costs. Pending miscellaneous applications if any also stand disposed of.

(Ajay Mohan Goel) Judge

3rd August, 2017. (Guleria)